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Why Gowling WLG

Conflict Avoidance Agreements for Arviq (Bowhead Whales) of the Arctic

Decreasing ice cover,[1] declining global biodiversity,[2] and socio-economic issues[3] are conspiring to increase the risk of conflict between wildlife and industry around the world and specifically in the Arctic. However, a relatively new form of agreement[4] called a Conflict Avoidance Agreement[5] is being used to avoid or reduce the likelihood of conflict between oil and gas companies and subsistence Bowhead Whale hunters in Alaska. The success of their use in this remote region suggests that this could be a tool for consideration in efforts to reduce impacts on marine (or other) wildlife elsewhere. Recent numerous collisions with fatal results between marine vessels and Right Whales on the eastern seaboard of North America provides evidence that new tools are needed. Perhaps the experience in Alaska (described below) could be put to use in regions like the St. Lawrence estuary or elsewhere.

Recent reports examining Conflict Avoidance Agreements have remarked on their success on the north shore of Alaska.[6] This is attributed in part to the fact that they combine Traditional Knowledge with western science to create thresholds that address potential effects on Bowhead Whales and traditional hunters who rely on them for subsistence. These agreements seem to have great potential to be implemented in Canada and seem well suited for areas where the regulatory scheme in place does not fully address local or traditional needs.

1. Background

The Bowhead Whale (Balaena mysticetus, or Arviq in Inuktitut) is a large Arctic marine mammal that has a remarkable adaptation allowing them to break sea ice over 20 centimetres in thickness.[7] During the summer months of June to September, Bowhead Whales can be found in many of the fjords and bays of the Canadian Arctic. They gather around crustaceous zooplankton, their main source of food. After September, the Bering-Chukchi-Beaufort Sea population migrates southwest to the Bering Sea. The Eastern Canada-West Greenland population migrates toward unconsolidated pack ice in northern Hudson Bay, Hudson Strait, central Davis Strait, southern Baffin Bay, and West Greenland.

Inuit subsistence practices have been fundamentally tied to Bowhead Whales since at least 1200 AD (and likely well before that) as they provide a rich and nutritious source of food in a barren landscape. Northern whaling villages in Nunavut and Alaska participate in the spring and fall hunt as the whales migrate. Many hunters still use hand-made skin boats called umiaqs, which are made from walrus or seal skin stretched over a wood frame and sewn with caribou tendons. Larger kayaks or motor boats are needed to haul the whale carcasses back to shore where, as much as possible, they are used for food, clothing, and jewelry, among other traditional uses. The Inuit have never overfished the whales and abide by a quota.[8]

2. Intersection with Oil and Gas Exploration

Geologically unique features in the Arctic have prompted exploration for oil and gas. Deep oceanic basins have low petroleum potential, but much of the Arctic is comprised of shallow continental shelves covered by less than 500 metres of water. Geologists predict an undiscovered reservoir of tens, or even hundreds, of billions of barrels of oil.[9] Studies have estimated that the Arctic reservoir would account for approximately four percent of the remaining conventionally recoverable oil in the world.[10] As ice cover decreases, oil and gas deposits become more accessible and more profitable.

In 1977, the International Whaling Commission expressed concern over the low Bowhead Whale population.[11] Their report specifically mentioned future expansion of offshore oil and gas extraction as being a risk to Bowheads.[12] At that time, Inuit subsistence hunters knew that Bowhead Whales were sensitive to anthropogenic noise, movements, and even smells.[13] Increased activity would affect their hunt. Traditional hunters had noticed that boat traffic, seismic exploration and drilling were causing migrating whales to deflect away from the shore and beyond their reach. This type of Traditional Knowledge has been incorporated into Conflict Avoidance Agreements since the agreements were first negotiated, likely contributing to their success in the Arctic.

3. Emergence of the Conflict Avoidance Agreement

Since 1986, offshore stakeholders such as representatives from whaling villages, the Alaska Eskimo Whaling Commission, and oil and gas companies, have all met to identify sources of potential conflict. Those sources of conflict are represented in the Conflict Avoidance Agreement’s four main purposes: 1) establishment of equipment and procedures for communication between stakeholders; 2) avoiding adverse effects to the subsistence Bowhead Whale hunt; 3) emergency procedures; and 4) dispute resolution procedures.

The most recent Open Water Season Programmatic Conflict Avoidance Agreement was reached in 2016. Highlights include (a) a communications protocol; (b) spatiotemporal separations; and (c) undertakings of good faith.

(a) Communication Protocol

The Conflict Avoidance Agreement communication protocol involves hiring an Inupiat-speaking Protected Species Observer (“PSO”) from local Alaskan communities. The PSO then communicates with a land-based communication centre to report all travel, interactions with whales, and accidents.

Industry participants provide the radio equipment. If a vessel encounters a whale, it must slow to below 5 knots, steer clear, and avoid separating the pod. These ongoing communications are critical as Bowhead Whales demonstrate plasticity in their migration patterns.[14] If Bowheads are found at an unexpected time or place, their location can be communicated to avoid conflict.

(b) Spatiotemporal Separations

Industry participants agree to coordinate the location and timing of geophysical exploration.

Stakeholders have agreed that no development will occur at certain times and locations during the traditional Bowhead Whale hunting season. Additionally, ships must remain at least two miles from the shore and aircrafts must remain at least 1,500 feet from the surface of the water. This is done because Bowhead Whales are solitary, but very vocal creatures. Disrupting their communication could result in disturbed mating or migration.

These separations may seem obvious, but the zones, distances and timing of migration had to be quantified for this provision to be useful. They exemplify the benefits of a science-driven approach to Conflict Avoidance Agreements. The provisions were drafted to restrict oil and gas development as little as possible while recognizing the sensitivity of Bowheads, which can be displaced by more than 20 kilometres from a seismic vessel.[15] Overall, the design of these provisions was tailored to meet local needs without imposing a blanket ban on commercial activity in the spring and fall.

(c) Good Faith

Industry participants undertake to promote transparency and good faith. They provide maps of all expected exploration and drilling, locations of their vessels, and sound signature data. If additional parties become involved in the area, industry participants agree to make good faith efforts to encourage these parties to join the Conflict Avoidance Agreement. Each of these provisions sets up a strong relationship between industry and the local community.

4. Regulatory Framework of the Arctic Extractive Industry

Canada’s regulatory scheme for offshore oil and gas exploration is complex.[16] Indigenous and Northern Affairs Canada (“INAC”) issues bids for offshore oil and gas exploration pursuant to the Canada Petroleum Resources Act.[17] INAC issues “Exploration Licenses” to successful bidders to further develop specific parcels of land. Then, the National Energy Board (“NEB”) administers Environmental Impact Assessments and permits pursuant to the Canada Oil and Gas Operations Act.[18] Throughout the process, the NEB assesses safety, protection of the environment, and conservation of oil and gas resources. The NEB may not consider potential impacts on offshore subsistence hunters.

North of the 60th parallel, the Canada Oil and Gas Operations Act requires oil and gas companies to negotiate a “Benefit Plan” with the local community.[19] However, benefit plans focus on employment, not cultural or species conservation. Oil and gas companies must consult Inuit and Inuvialuit communities pursuant to their land claims agreements, but only where the local community owns the land to be developed. This obligation is not imposed on offshore developments. Furthermore, the Marine Liability Act[20] and the Canada Shipping Act, 2001[21] both exempt oil and gas development. The statutory exemptions and failure to consider cultural and species conservation illustrate clear regulatory limitations.

Other statutory requirements, such as the Marine Mammal Regulations[22] under the Fisheries Act,[23] and the Ocean’s Act,[24] provide protections to Bowhead Whales. The Marine Mammal Regulations restrict Bowhead hunting to certain areas and certain times of the year. The Oceans Act[25] provides protection for “marine protected areas”, one of which exists specifically for Bowhead Whales in the Arctic.[26] However, the regulations do not affect vessels that unintentionally encounter Bowhead Whales. They do not restrict access to migration routes, other than specifically designated zones of protection. Static zones of protection do not address the migratory nature of Bowhead Whales, which is a problematic gap for subsistence whaling communities.

Given the gaps in Canada’s Arctic regulatory scheme, Conflict Avoidance Agreements represent a useful tool to avoid new conflict. The Arctic is faced with a number of rapid changes that are difficult to address with regulations: climate change;[27] decreasing biodiversity;[28] and socio-economic issues,[29] to name a few. These problems are in many ways localized, making them further unsuitable for regulation. Regulatory schemes are often too broad, costly for industry, and lack focus on specific interests of local communities.

A particular benefit of a Conflict Avoidance Agreement is its ability to recognize and integrate Traditional Knowledge. Like a specialized tribunal, a Conflict Avoidance Agreement allows vested, qualified individuals to decide how industry should interact with the ecosystem and communities. It incorporates indigenous Traditional Knowledge which Arctic communities have relied on for generations. Canadian territorial regulatory regimes require developers to consider and incorporate Traditional Knowledge,[30] but Conflict Avoidance Agreements take Traditional Knowledge a step further by using it actively in the protection of a particular resource. Greater appreciation for the value of Traditional Knowledge could be more directly developed by incorporating it into research design and the peer review process, as it has been in many Arctic jurisdictions.[31]

A Conflict Avoidance Agreement is also flexible. It is typically renegotiated on an annual basis, which allows for timely changes in response to new stressors. This is particularly useful in the context of species that may change behaviours in response to pressure from climate change or increased boat traffic. Again, Traditional Knowledge is well-suited to aid in this endeavor because it does not require a lengthy study, write-up, peer review, and publication before it can be accepted and implemented.

6. Other Uses for Conflict Avoidance Agreements

Beyond marine mammals, Conflict Avoidance Agreements could be used to avoid other adverse interactions between developers and biota. For example, the Red Dog Mine near Kotzebue, Alaska had to address local concerns regarding the fall caribou migration. To avoid adverse impacts, the Mine implemented a communication protocol to notify drivers of caribou locations.[32] The Mine also built a holding facility and avoids trucking aggregate during caribou migrations.[33] This was all done pursuant to an agreement with local Indigenous communities. Caribou, whales, and other threatened species in ecologically sensitive ecosystems frequented by Indigenous hunters/gatherers are well suited for Conflict Avoidance Agreements.

Finally, Conflict Avoidance Agreements provide a template for a tool that could be useful in protecting Bowheads elsewhere as well as other marine species such as the Right Whale, whose numbers are more threatened than their distant Bowhead cousins. While Right and Bowhead Whales live in very different environments and are subject to significantly different human threats, lessons learned in the protection of Bowheads by those who rely on them for subsistence may well be useful in protecting Right Whales from collisions in the very busy shipping lanes of the eastern seaboard of North America.

[4] Conflict avoidance agreements have been used in Alaska since 1986, but are new to Canada.

[5] The 2016 Open Water Season Programmatic Conflict Avoidance Agreement can be found online at <http://nebula.wsimg.com/d87ecb7827d9914ec42393e2a60ca782?AccessKeyId=5111461408D77964347D&disposition=0&alloworigin=1>.

[13] Interestingly, this view was not shared by western scientists until years later. There were fundamental flaws in the study methods used to measure whale sensitivity. However, the benefits and advantages of incorporating traditional knowledge is beyond the scope of this article.

[19] Benefits plan means “a plan for the employment of Canadians and for providing Canadian manufacturers, consultants, contractors and service companies with a full and fair opportunity to participate on a competitive basis in the supply of goods and services used in any proposed work or activity referred to in the benefits plan.”

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